[Redacted], Emanuel W., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 10, 2022

Appeal No. 2020005408 (E.E.O.C. Mar. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emanuel W.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020005408 Hearing No. 430-2016-00333x Agency No. ARBRAGG15AUG02957 DECISION On September 16, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 18, 2020, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a “Vets 2 Feds” Intern, Contract Specialist, GS-11, at the Agency’s Mission and Installation Contracting Command (MICC) in Fort Bragg, North Carolina. On October 7, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020005408 2 1. On July 22, 2015, the Deputy Commander (DC) issued Complainant a memorandum with the subject “Discharge During Probationary Period” removing Complainant; 2. From April 22, 2015 through July 22, 2015, Complainant was subjected to continuous harassment by the DC and the Brigade Commander (BC) when: a. On April 22, 2015, the DC informed Complainant he could no longer enter financial records by computer to perform his duties until his security clearance issue was resolved; b. On May 8, 2015, the DC called Complainant into his office and stated he did not believe Complainant’s explanation on a Defense Travel System (DTS) error and began to interrogate Complainant; c. On May 11, 2015, the DC falsified a report to justify his reason for investigating Complainant’s travel and expenses for a training course Complainant took; d. On July 23, 2015, Complainant found out while reviewing his security packet that the BC wrote a memorandum to the Department of Defense’s Consolidated Adjudications Facility (CAF) with the subject: “Intent to Revoke Security Clearance,” in which the BC accused Complainant of having a delinquent debt of over $14,000.00.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on August 10 and 11, 2020, and issued a decision on August 14, 2020. The Agency’s memorandum stated that it was terminating Complainant during his probationary period due to a “lack of candor” on two specific occasions. See Report of Investigation (ROI) at 29. The first incident involved Complainant’s failure to disclose a delinquent debt on his security clearance application. On April 18, 2015, the Department of Defense CAF issued an “Intent to Revoke [Complainant’s Security Clearance]” due to the delinquent debt and informing Complainant he had the right to submit a written response. See ROI at 133-44. The DC explained that he met with Complainant on April 22, 2015 to discuss the debt issue and, at first, Complainant stated that he did not recognize the debt and then, at the end of the meeting, acknowledged that the debt may be his wife’s. See ROI at 31. The DC stated that Complainant’s written explanation did not adequately address whether he had knowledge of the debt, even though it had been outsourced twice to two different collection agencies. See ROI at 34. The DC also asserted that Complainant was dishonest because Complainant did not follow the required procedure in submitting his rebuttal statement on the debt, thereby circumventing the BC’s opportunity to submit the Agency’s recommendation to the CAF regarding the Intent to Revoke. See ROI at 34, 179. 2 Complainant also included his termination as one of the incidents of harassment. 2020005408 3 The second incident in which the DC found Complainant to have been dishonest involved numerous discrepancies in a travel authorization form Complainant submitted for travel to attend a training course in Huntsville, Alabama. See ROI at 164. The DC explained that Complainant was required to travel to Huntsville on two separate occasions and chose to drive both times, even though flying is the preferred mode for required travel. See ROI at 176. For the second trip, Complainant submitted two pre-approval authorization forms, which initially included the cost of travel by rental car and indicated it would be cheaper to travel by car than to fly. See ROI at 164-65. In the second pre-approval form, Complainant removed the lodging and per-diem expenses that he would necessarily incur during the drive to Huntsville. See ROI at 35, 176. The DC stated that he only approved Complainant to leave for the training on Sunday, March 29, but Complainant left on Saturday, March 28, a day before he was authorized to leave, and thereby incurred an additional day of expenses. See ROI at 176-77. The DC asserted that Complainant made an unauthorized stop in Fort Gordon, Georgia to see his son during both trips to Huntsville. See ROI at 173. Moreover, the DC stated that Complainant acted dishonestly in misrepresenting the reason his travel voucher had not yet been approved, which resulted in his travel voucher being approved before the discrepancies were resolved. See ROI at 33. When a Property Management Specialist (PMS) with authority to approve travel vouchers asked Complainant about his unapproved voucher, Complainant told her that it was only a matter of the other approvers being busy and not having had time to approve the voucher. See ROI at 32-33. The PMS stated that Complainant did not inform her of any issues with his voucher and, if she had known of the issues, she would not have approved the voucher. See ROI at 32. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its action and that Complainant did not establish that the Agency’s reasons for terminating him were a pretext. The AJ emphasized that he did not find Complainant’s testimony at the hearing justifying his actions with regard to his security clearance and his travel voucher to be credible. The AJ further found that there was no evidence to support Complainant’s assertion that he was terminated due to his race. He further concluded that Complainant did not establish a hostile work environment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues the AJ did not adequately consider the evidence of racial animus on the part of the DC and the BC and asserts that the evidence in the record clearly establishes that Complainant was terminated due to his race because the allegations of wrongdoing were baseless. In response, the Agency contends that the AJ correctly determined that Complainant did not present any reliable evidence to support his assertions of pretext. The Agency argues the AJ’s conclusions are supported by substantial evidence and should be affirmed. 2020005408 4 ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions related to the issue with Complainant’s security clearance, the discrepancies in his travel authorization forms, and ultimately his termination. The AJ specifically found that Complainant was terminated due to his lack of candor with respect to both the delinquent debt and his travel authorization. We find that there is substantial evidence in the record to support the AJ’s finding that the Agency provided legitimate, nondiscriminatory reasons for its actions. The issues with Complainant’s security clearance and his travel authorization cited in the memorandum regarding Complainant’s termination are supported by contemporaneous memoranda and other documents as well as the statements of a number of employees. 2020005408 5 Complainant argued that the Agency’s reasons for his termination were a pretext for discrimination because his security clearance was ultimately approved after the CAF reviewed his written rebuttal statement and because his travel was in accordance with Agency procedures and any discrepancies were not due to wrongdoing on his part. The AJ concluded, however, that Complainant did not establish that the Agency’s reasons were pretext for discrimination. The AJ specifically found that Complainant’s testimony was not credible because it was either implausible or not supported by the evidence in the record. He noted, for example, that at the hearing, Complainant denied visiting his son on either of his trips to Huntsville when a number of employees, including the DC, testified that Complainant had stopped and visited his son at Fort Gordon, which they could not have known if Complainant had not told them. See Hearing Tr. at 155-56; ROI at 165. The AJ found that Complainant’s dishonesty at the hearing confirmed the Agency’s suspicions of his lack of candor. He also found that Complainant was not candid in telling the PMS she could approve his travel voucher when he knew there were unresolved discrepancies. The AJ further found that while Complainant’s security clearance was eventually approved, the DC and the BC had reason to believe that Complainant had not been candid about his knowledge of the debt. Upon review of the record, we find no reason to disturb the AJ’s credibility determinations. See Louthen v. U.S. Postal Serv., EEOC Appeal No. 01A44521 (May 17, 2006) (noting that the Commission accords great deference to the factual findings of an AJ, particularly credibility determinations based on testimonial inferences). The AJ accurately characterized the testimony of the witnesses and his determination that Complainant was not credible is reasonable and supported by the evidence in the record. The AJ also found that Complainant did not present any reliable evidence to support his assertion of pretext, aside from hearsay statements about how the commanders were displeased that all the interns in the “Vets 2 Feds” program were African-American. He noted that he did not credit the MICC Director’s testimony at the hearing that Complainant was terminated due to racial animus, because her testimony was contradicted by her own affidavit during the investigation and there was no explanation for the discrepancy. The AJ therefore concluded that Complainant did not establish that the Agency’s reasons for his termination were a pretext. On appeal, Complainant expressed his disagreement with the AJ’s credibility and factual findings but did not cite to any evidence in the record that directly contradicts a finding made by the AJ. Complainant repeatedly asserts that the management officials, including the DC, lied in their account of events, but he did not provide any evidence to support these assertions. Contrary to Complainant’s contention, the mere fact that at the hearing, the MICC Director stated Complainant was terminated due to racial animus is not evidence of discrimination. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We find that the AJ’s findings are not so erroneous they could not be credited by another fact-finder. See Complainant v. Dep’t of Def., EEOC Appeal 0720120002 (Sept. 19, 2014). We therefore affirm the AJ’s finding that Complainant did not establish that he was subjected to unlawful discrimination. 2020005408 6 Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The AJ found that Complainant did not establish that the Agency subjected him to a hostile work environment as alleged because the incidents complained of, i.e., the temporary removal of his duties due to the security clearance concern and the meetings to address the discrepancies in Complainant’s travel authorization, did not rise to the level of harassment. He stated that they constituted routine work assignments, instructions, and admonishments which the Commission has held do not amount to discriminatory harassment. We find that the AJ’s finding that Complainant did not establish that he was subjected to unlawful harassment is supported by the evidence and consistent with the law. Complainant did not establish that any of the incidents of alleged harassment were due to a protected basis. We therefore affirm the AJ’s finding that Complainant did not establish that he was subjected to unlawful harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s decision finding that Complainant did not prove that he was subjected to discrimination as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2020005408 7 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2020005408 8 RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 10, 2022 Date